' This order will dispose of Criminal Appeals Nos. 13/L and 19/L of 1983 since they arise out of the same order.
2. Mst. Memoona Kausar and Asghar Ali have `filed these appeals against the order of Syed Muhammad Zafar, Babar, Additional Sessions Judge, Lahore dated 12-12-1982, by which he convicted both of them under section 10(2) of the Offence . Of Zina (Enforcement of Hudood)
Ordinance, 1979 and sentenced Asghar Ali to five years' R. I., 10 stripes, Rs, 3,000 as fine (one years' R.
I. In default) and sentenced Mst. Memoona Kausar to 2 years' R. I. And Rs, 1,000, as fine (in default six months' R. I.).
3. The prosecution case is that the two convicts had developed illicit liaison and ultimately on the 20th of April, 1982, Asghar Ali kidnapped Mst. Memoona Kausar. It is stated that Mst. Memoona Kausar had gone to a Doctor for getting some medicine to relieve of the pain in her ear. She was accompanied by Asghar Ali and both of them disappeared from the Clinic of the Doctor. The First Information Report of this occurrence was given by Sardar Beg, P. W. 5 father of Mst. Memoona Kausar on the 4th of May, 1982. There are two versions regarding the recovery of Mst. Memoona Kausar and arrest of Asghar Ali appellant. Maqsood Ali, P. W. 8, said that he arrested Asghar Ali when he was in the company of Mst. Memoona Kausar on the 31st of May, 1982, from the Bus Stop in Baghbanpura. The story given by P. W. 5, Sardar Beg is that the recovery of Mst. Memoona Kausar was made from the house of brother-in-law of Asghar Ali where Asghar Ali was also present.
4. Mst. Memoona Kausar was arrested and kept in the police station for two days and on the 15th of May, 1982, an application was made by the Police to a Magistrate for recording her statement as an abductee (and not as an accused) under section 164, Cr. P. C. The Magistrate recorded the statement after warning her that it could be used against her. He also disclosed his own identity to her. He gave her sufficient time to ponder over the matter but he did not inform her that she would no longer be remanded to police custody but would be sent to the judicial lock-up
5. After her statement, Mst. Memoona Kausar was arrested by the police as a co-accused for commission of the offence under section 10(2) of the Ordinance,
6. Mst. Memoona Kausar was medically examined by Lady Dr. Akhtarun-Nisa, P. W. 1, who found that she had eight weeks' pregnancy but advised her, "urine examination for pregnancy." The urine test was carried out at Cardex Clinic by lady Dr. Ghazala but her positive report of the test was proved by Dr. Abdul Majid Khan, P. W.
2.
7. Three witnesses were produced to prove the offence. P. W. 4, Mst. Firdous Akhtar sister of Mst.
Memoona Kausar was declared hostile and nothing turns upon her evidence against any of the appellants. P. W. 5, Sardar Beg is not a witness of any occurrence or even of the alleged abduction.
But contrary to the statement of the Police Officer, he, as stated above, said that the recovery of Mst. Memoona Kausar was effected from the house of brother-in-law of Asghar Ali appellant. He also said that Asghar Ali was living separately from his parents which means that the recovery was not from his actual custody.
8. P. W. 6, Nek Mohammad who appeared as a Wajtakkar witness stated that though he had recognised Asghar All in the Clinic of the Doctor but he had not recognized the lady accompanying him. The evidence is of no use.
9. The alleged confessional statement of Mst. Memoona Kausar is not even worth the paper on which it was written for several reasons. Mst. Memoona Kausar had not been arrested as an accused person but had been retained in the police station as a witness for two days which is itself a significant matter. Thereafter, she was produced before the Magistrate for her statement under section 164, Cr. P. C. As an abductee which means that she was to be examined as a witness only.
The Magistrate did not inform he= that she would be sent to the judicial lock-up. In fact he could not have given her this information because she was never treated as accused person by the police upto that time. It is not, therefore, difficult to infer from these circumstances, that she was not made an accused person for some time so that she may be prevailed upon by the Police Officer to make a statement which might be confessional in character. The statement must be a result of some promises made by the Police Officer. Such statement is neither admissible as a statement nor as a confession.
10. It is not admissible as a statement because of the provision of section 145 of the Evidence Act. It is also not admissible as a confessional statement for the reasons already recorded.
11. From this it would be clear that there is no evidence against Asghar All and he is liable to be acquitted. The only evidence against Mst. Memoona Kausar is that of P. W. 1, and P. W.
2. The statement of P. W. 2, however, does not go to the extent of establishing that the urine examined by Lady Dr. Ghazala was really the urine of Mst. Memoona Kausar. The evidence of P. W. 2 and of the urine test is of no help to the prosecution.
12. Generally, the evidence of lady Dr. Akhtar-un-Nisa, P. W. 1 should have been sufficient for the conviction of Mst. Memoona Kausar but by suggesting in the medical examination report that she should undergo urine examination for pregnancy tests, she had introduced an element of doubt about the certainty of the result of her examination. This means that she still entertained some doubts which she wanted to resolve by the suggested urine test. The benefit of doubt in these circumstances must be given to Mst. Metuoona Kausat,
13. These appeals are therefore, accepted, the conviction and sentences of both the appellants are set aside and they are acquitted. Both of them are on bail. Their bail bonds are hereby discharged.